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Fierce anger over potential use of metadata for civil suits

Big response to AGD consultation.

Australian citizens have lashed out at the federal government over the potential for information stored under the data retention regime to be opened up to civil lawsuits, lodging more than 200 submissions to a consultation.

Telcos store personal customer details, billing information, IP addresses, location and traffic data, and upload and download volumes, among other things, under the data retention scheme, for law enforcement agencies to access without a warrant.

Under the data retention legislation the AGD has the ability to make exceptions, through regulations, for use of the metadata in "appropriate" civil cases.

At the time of the bill's introduction examples like international child abduction and family law proceedings involving violence were floated.

However, when the data retention scheme came into play last October concerns were raised that it could be used by rights holders to chase down copyright infringers. The AFP also admitted it would use the scheme for this purpose.

Submissions to the consultation published by the AGD this week reveal Australians are extremely concerned that this outcome will eventuate if metadata use is allowed for civil cases.

The submissions detail outrage from citizens over what it would mean for privacy and civil liberties.

"Opening metadata to civil suits will allow the private information of citizens to be exposed to the public and to anyone with a vendetta. In particular, it will create motivation for frivolous lawsuits, created with the express motivation of exposing the victim's internet browsing history," one respondent wrote.

"It is clear that the intention of parliament was that the exemption provisions be used extremely sparingly and only with very strong justification," another wrote.

"The government's justification for the civil liberties burden caused by the introduction of the data retention regime focused strongly on investigation of national security offences - an objective that will not be aided in any way by any exemption."

Several pointed to Attorney-General George Brandis' comments in late November that the data retention regime was to be applied only to the most serious crimes: "Breach of copyright is a civil wrong. Civil wrongs have nothing to do with this scheme", he said at the time.

The sentiments are echoed throughout the vast majority of the 200-plus submissions, and were backed up by the Victorian privacy commissioner [pdf], Australian email hosting firm FastMail [pdf], Thoughtworks [pdf], and Australia's biggest media organisations [pdf].

Also lending their voice to the chorus of dissent were the Australian Lawyers Alliance [pdf], National Association of Community Legal Centres [pdf], UNSW's Children and Youth Law Centre [pdf], NSW Young Lawyers [pdf], Monash Uni's Castan Centre for Human Rights Law [pdf], and civil liberties and privacy advocacy groups.

Australia's telcos similarly argued against use of the data in civil proceedings [pdf].

However, a small number of organisations, like the Queensland College of Teachers, argued for the proposal in cases where, for example, teachers have had inappropriate relations with students [pdf].

The Queensland Law Society said it could be useful in cases like personal compensation claims, and that each civil application for metadata should be subject to a judge [pdf].

However, the OAIC [pdf] and the Law Council of Australia [pdf] argued that the AGD needed to do further work - through more consultation and assessments - before it made any decisions.

The AGD has said it will report back to parliament on the consultation by April 13.

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